The Federal Ordinance on the Ombudsman, “Landsverordening Ombudsman” (AB 2010 GT no.20) is an organic law that regulates the legal status, tasks and authorities of the Ombudsman
It is an organic law because the establishment of the Ombudsman is laid down in the Constitution (article 78).
The main task of the Bureau as described in the afore-mentioned ordinance is to investigate complaints filed by the citizens of St Maarten against a department, civil servant, other person or entity with public authority and competency when carrying out the administrative functions¹
The Federal Ordinance on the Constitutional Court, “Landsverordening Constitutionele Hof” (AB 2010 GT no.29), regulates another task of the Ombudsman, namely that of guardian of the Constitution: laws that are ratified, but not implemented and are or may appear to be in conflict with the Constitution can be submitted by the Ombudsman to the Constitutional Court for total or partial annulment.
The organizational structure of the Bureau consists of the Ombudsman, the Secretary/Policy Advisor, a Senior Lawyer (“Jurist”), two Complaint Officers and the Administrative Clerk.
1.Acceptance of complaints by the Bureau.
Since the swearing in of the first Ombudsman on October 10th 2010 a lot of ground work has been taking place to get the Bureau up and running.
Although we are not completely equipped, we will be accepting complaints starting January 17th 2011 on Monday, Wednesday and Friday from 10:00 a.m. until 2:00 p.m. at the former ECC (Eastern Caribbean Cellular) Building on the first floor.
We apologize, in advance for the inconvenience and for the tardiness in replying to your request. The renovations to the building are still in progress, the office furniture & equipment and computers still need to be ordered and will be delivered as soon as the building is completed. The staff will be hired immediately upon receiving the approval of the formation plan by the Parliament, and the nomination process by Government is completed.
Our motto will be: “no one may leave the Bureau without an answer.” Even if the case is not a matter for the Ombudsman, the client will be pointed in the right direction.
2. The tasks, functioning and authority of the Ombudsman.
Important for the community to know is:
a) What can the Ombudsman mean for me (“Public Defender”);
b) How can I file a complaint?
Ad a) The Law states (article 15 of the Federal Ordinance Ombudsman) that everybody has the right to file a complaint at the Ombudsman.
· Everybody signifies natural persons and legal entities (companies, NGO’s, foundations, associations etc.,).
· A complaint is an expression of displeasure or dissatisfaction about a conduct. The conduct refers to that of a government body, civil servant, person or entity with public authority and competence. ( A complaint is not a problem with your neighbor or wife nor is a request of government or government department considered as a complaint).
· Government bodies are all government departments, including Ministers, civil servants and private entities charged with public authority and competence (government tasks and decisions that are delegated by government). Government bodies that are exempted are Parliament, Justice and the Electoral Board.
The Ombudsman is not authorized to investigate:
· actions/non actions of private entities, except if they are charged with public authority (execute government tasks);
· When the complaint covers:
a) a general policy of the government body;
b) a general binding regulation
· legal procedure on the issue is already in process
· a decision is already taken by an administrative court on the matter
Ad b)To facilitate the people we have prepared a standard complaint form that complies with all the legal requirements regarding the filing of a complaint.
Noteworthy to mention is that some cases do not warrant a stringent investigation but a simple intervention on the part of the Ombudsman can also yield the required solution.
The law further provides for the Ombudsman to take the initiative to investigate a conduct of a government body or civil servant, if he/she suspects that the conduct is improper (article 16 Federal Ordinance Ombudsman). Examples of the afore-mentioned are:
· when there is a suspicion that something is structurally wrong in a department, government entity, or with a civil servant or
· based on public outcry (on a valid issue).
During the investigation the Ombudsman can request the assistance of experts or other control entities, such as the General Audit Chamber, Corporate Governance Council etc.
It is therefore imperative that contact be established with these instances and other Supervisory /Control institutions such as, General Audit Chamber, MOT, Corporate Governance Council, Council for Law and Order etc.
The general rule of thumb is that the Ombudsman is always authorized to investigate, whether based on a complaint or on his/her own initiative, as long as the law does not forbid it.
The investigation will entail gathering information from all government departments, entities, civil servants and related experts. They are obliged to comply with the request within the time frame stipulated by the Ombudsman.
What if persons do not comply? Then the person within the organization will be informed according to the order of the hierarchy of authority. However, at the end of the day the
Minister is ultimately responsible!
The Ombudsman is appointed by Parliament and thus also reports directly to Parliament and by extension, to the general public.
Another important task of the Ombudsman is regulated in the Federal Ordinance of the Constitutional Court and can be summarized as the Guardian of the Constitution.
If the Ombudsman suspects that a law is in conflict with the Constitution, he/she can submit that law to the Constitutional Court for complete or partial annulment.
The law states that the Ombudsman must receive the pertinent law for review after it has been ratified by the Council of Ministers and 6 weeks before it takes effect.
When is a law/ordinance deemed unconstitutional?
a) When the content conflicts with the Constitution;
b) When procedures as provided for in the Constitution, are not followed;
.
CURRENT EXAMPLES:
A. Example of the Buncamper case:
This case was initiated with an article in one of the daily newspapers followed by an outcry of the public.
a) The action or improper conduct took place not while the person was a Minister but a Commissioner ( additionally, the Federal Ordinance on the Ombudsman was not in effect)
b) If the law was in place: Could a complaint be filed against a Minister or Commissioner? I other words is the position of Minister exempted from being investigated? A Minister is not exempted and therefore his/her conduct can be investigated to determine if the conduct is improper.
c) Disregarding the fact that the Federal Ordinance was not in effect, could the citizen who filled the land and requested the land in long lease file a complaint based on:
· misuse of power by the Commissioner;
· not in compliance with the principles of good governance (by government).
Yes, if he is affected by it.
B.Example of an investigation based on the initiative of the Ombudsman is the Kadaster Case:
Can Kadaster be investigated by the Ombudsman? Is Kadaster a public entity with public competence and authority?
· Yes, Kadaster is a private entity with public authority because:
a) it was founded by government to execute government tasks;
b) it decides on tariffs;
c) it decides on how to spend monies collected for (government) services;
· There was a public outcry against the functioning of the Kadaster, which started with the dismissal case and the verdict of 13 October 2010; the discontent intensified with the issuance of conflicting registration of the land in long lease in the Buncamper case.
Incorrect statements were made by the Director in the media, example, that the Kadaster has nothing to do with Government and that the people will have to inform Kadaster if they see a mistake. Registry of land in Public Registers, in accordance with the law, is paramount with regards to legal certainty of the status of real estate. The registration of incorrect information can have economic, social and legal consequences. The Kadaster situation is a matter that immediately/on a daily basis affects the entire community. Matters of land registry are of utmost importance for the legal status of property.
C.Example of the submission of an ordinance for total or partial annulment at the Constitutional Court:
The Ordinance in question is the Ordinance regarding Prosecution of Persons in Authority.
Apart from technicalities like the date of ratification of the ordinance in light of the transitional law and other matters, the main question is whether the law is unconstitutional or not!
As indicated before I will get my clues from the general public and interest groups, but the Ombudsman is ultimately responsible for the decision whether to proceed with a request for annulment or not.
The position of the Bar Association regarding the law on Prosecution of Persons in Authority as stated in a recent article is: that the infringement on the Constitution, the basic rights of equality and non discrimination, goes much further.
The task of the Ombudsman in such cases is to evaluate if the basic rights of the citizens are limited, discriminated, or infringed upon by privileging a certain group in the community, or persons in authority?
The principals of equal rights and non-discrimination provide that everybody should be treated equally in equal situations.
The legal questions that should be posed in this case are:
· Is the position of elected officials and persons charged with public authority (Parliamentarians and Ministers not just any politician) equal to the average citizen?
· Is it discriminatory to charge the highest ranking authority in the Public Prosecutor’s office, the Attorney General, with the decision to prosecute, or not to prosecute a person in authority?
It must be made clear that it is not a matter of not prosecuting a person in authority at all, but charging the Attorney General, the highest ranking authority, with that decision.
The Ombudsman should at all times be vigilant in interpreting the law related to the Constitution, as well as other implications, which may undermine the Constitution or the system in another way:
A principle behind a law, outdated or protective of a certain group of people, does not readily establish conflict with the Constitution, and should be analyzed based on legal theory. (Opinions may differ).
For the Bar Association to assume that the Attorney General may not request to prosecute a person in authority is rather odd; it undermines the office and authority of the Attorney General.
3) OFFICIAL OPENING OF THE BUREAU:
After we are settled, the personnel officially appointed and office furniture, website, IT, computers are in place, we will officially launch the opening of the Bureau.
We have prepared the ground work and are waiting for the final go by Parliament, Government and USONA to furnish and staff the Bureau.
We will start, cautiously, to accept complaints; the 100 days after becoming country has passed and the adjustment period is over. We must begin to serve the public even with the little that we have.
4) FUTURE SESSIONS:
For the first year emphasis will be placed on informing the public by organizing:
· Press Briefings and issuing press releases;
· Information sessions upon request or by the Ombudsman for organizations and other interest groups /stakeholders (Community Councils, Environmental Foundations, Chamber of Commerce, Unions etc)
· Information sessions at the Community Centers etc.
The Ombudsman is a new institution for St Maarten; the public must become aware of its existence, role and tasks. Guidelines and policies will continuously be reviewed and upgraded; technology will be introduced to improve the level of service of the Bureau and to fulfill the role of Watch Dog of the Constitution.